A  R  G  T  M  E  N  T 


WILLIAM  CURTIS  NOYES,  ESQ, 


si 


ON   THE  TRIAL  OF 


HON.  FREDERICK  A.  TALLMADGE, 

GENERAL  SU PERIINTEIN DENT  0:  METROPOLITAN  POLICE, 


(The  t»oavL)  of  (Commissioners  of  police. 


REPORTED  BY   P.  H.  CAREY, 

STENOGRAPHER. 


NEW  YORK: 
BAKER    &    GODWIN,  PRINTERS 

PRINTING  -not* SE  SQUARE,  OPPOSITE  CITY  HALL. 

1  858. 


V 


iEx  ICtbrtfi 


SEYMOUR  DURST 


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A vi  ky  Auc  urn  en  rai  and  I;im  Aris  Library 
OUT  OF  Seymour  B.  Durst  ()i  d  York  I.ihr  \m 


A  R  ( i  1   M  E  N  I 


WILLIAM  CURTIS  NOYES,  ESQ, 

ON   THE  TRIAL  01 

HON.  FREDERICK  A.  TALLMADGE, 

GENERAL  SUPERINTENDENT  OF  METROPOLITAN  POLICE, 

BEFORE 

Cljf  $oarb  of  C  dmmtssioiurs  of  goitre. 


REPORTED  BY   P.  H.  CAREY, 

B  T  E  N  <>  <;  B  A  P  BIB, 


NEW  YORK: 
BAKER   &    GODWINj  PRINTERS, 

rr.lNTiN«;-HOl"SE  BQVAXS,  OPPOSITE  CITY  hall. 

1858, 


CLASSICS 
210 

JtSft 


ARGUMENT. 


Thursday,  September  30,  1858. 

The  Board  met  for  the  purpose  of  hearing  the  argument  of  Win.  Curtis 
Noyes,  Esq.,  counsel  for  Mr.  Tallmadge. 

Present — Messrs.  Nye,  Boweii,  Stranahan,  Stillman,  and  Mayors  Tie- 
maun  and  Powell. 

Mr.  Noyes  said  : — 

I  shall  be  obliged  to  solicit  the  indulgence  of  the  Commissioners  some- 
what more  than  is  usual  in  cases  of  this  description,  as  well  on  account  of 
my  own  physical  condition,  as  because  of  the  importance  and  gravity  of  the 
matter  which  I  am  to  speak  about.  I  have  no  doubt,  however,  that  every 
member  of  the  Board  will  bear  with  me,  with  some  degree  of  patience  at 
least,  while  I  put  before  them  the  views  which  I  have  entertained  of  this 
very  important  case — important,  not  only  in  reference  to  the  individual 
who  is  accused,  but  important  also  in  reference  to  the  public  interests 
involved,  and  the  character  of  the  outrages  which  have  led  to  this  investi- 
gation. I  claim  for  myself,  in  the  trial  of  this  cause,  as  the  counsel  for  the 
accused,  that  the  utmost  liberality  and  fairness,  and  the  utmost  freedom 
from  technicality  of  every  sort,  have  been  exercised ;  and  this  has  been 
done  on  the  part  of  my  learned  associate,  Mr.  Tracy,  and  myself,  because 
we  were  anxious  that  eveiything  should  be  investigated,  and  were  desirous 
only  of  arriving  at  the  exact  truth.  We  were  surprised,  indeed,  at  what 
seemed  to  us  the  haste  Avith  which  the  suspension  of  the  accused  was  made 
on  the  6th  of  September  ;  and  yet  it  finds  its  apology,  and  one  is  necessary, 
in  the  fact  of  the  great  public  clamor  and,  indeed,  the  individual  solicita- 
tion to  which  this  Board  was  subjected  ;  for  we  know  that  a  celebrated 
public  journalist,  on  the  morning  of  the  7th  of  September,  claimed  that  he 
had  brought  the  Board  of  Police  Commissioners  to  the  proceeding  which 


4 


has  occupied  our  attention  now  for  nearly  a  month  ;  and  we  know,  too, 
that  he  declared  that  unless  the  investigation  was  satisfactory  to  himself,  he 
would  advocate  a  repeal  of  the  law  under  which  the  Board  was  constituted. 
T  do  not  suppose  that  that  threat,  the  ad  terrorem  argument,  will  have  any 
influence  whatever  with  this  Board.  I  only  mention  it  as  showing  that,  on 
occasions  of  this  sort,  when  the  public  attention  is  awakened,  and  when 
the  public  terror  or  horror  is  aroused,  a  great  many  steps  will  be  taken, 
and  a  great  many  means  resorted  to,  which  on  other  occasions  would  find 
no  favor.    In  truth,  the  clamor  which  has  been  raised  on  this  subject,  not 
only  against  the  General  Superintendent,  but  against  the  Board,  lias  put 
the  Board  itself  upon  trial — has  put  the  Board  of  Police  Commissioners, 
themselves,  individually  and  collectively,  upon  trial ;  and  the  question  has 
been  often  asked,  whether  the  investigation  here  was  for  the  purpose  of 
ascertaining  the  guilt  of  the  accused,  or  for  the  purpose  of  self-exculpation. 
This  state  of  things  has  been  brought  about  by  the  inconsiderate  acts  of 
those  who  claim  to  control  and  direct  public  sentiment,  who  are  usually 
hasty  and  inconsiderate  in  what  they  do,  and  who  have,  in  addition,  very 
seldom  an  accurate  knowledge  of  the  facts,Pand  scarcely  any  knowledge  of 
law.    It  will  be  a  part  of  the  duty  of  this  Board,  not  only  to  the  accused, 
but  to  themselves,  to  place  this  whole  matter  upon  its  true  basis,  and  to 
place  the  responsibility,  too,  where  it  properly  belongs.    The  state  of  the 
public  mind,  as  well  as  of  individual  feeling,  to  which  I  have  alluded, 
is  quite  unfavorable  to  the  just  and  impartial  determination  of  such  a  ques- 
tion as  this.    One  of  the  first  elements  of  established  order,  is  a  profound 
sense  of  justice,  and  a  determination  to  have  it  honestly  executed ;  but 
justice  is  never  properly  executed  in  the  midst  of  clamor,  because  clamor 
always  results  in  persecution.    One  hundred  years  ago,  in  England,  a  dis- 
tinguished naval  officer  was  unsuccessful  in  relieving  Fort  St.  Philip,  in 
Minorca.    A  clamor  was  raised  against  him  by  excited  mobs  and  by  the 
press.     lie  was  tried  for  not  doing  "the  utmost  in  relieving  Fort  St. 
Philip,"  and  was  convicted,  through  the  base  efforts  of  an  imbecile  admin- 
istration,   lie  had  misjudged,  probably,  as  to  the  best  means,  and  he  was 
shot  disgracefully,  as  Voltaire  sarcastically  has  it,  "for  the  encourage- 
ment of  others."    Public  sentiment,  as  well  as  public  history,  have  elevated 
that  man  into  a  martyr ;  and  this  is  one  of  the  ways  in  which  martyrs  are 
made.    It  behoves  this  Board  to  beware  lest  another  martyr  be  added  to 
the  list  of  the  persecuted.    No  justice  can  properly  be  administered  without 
coolness  and  reflection,  and  in  the  absence  of  clamor.    I  mention  this 
historical  fact,  and  allude  to  its  causes,  as  precautionary. 

There  is  another  subject  to  which,  in  frankness,  I  am  bound  to  call  the 
attention  of  the  Commissioners.  I  have  never,  in  the  course  of  my  profes- 
sional life,  appeared  before  such  a  tribunal  as  this.  Never.  Here  are 
accusers,  witnesses,  judges  —  judges  who  condemned   in  advance  and 


0 

without  a  bearing, — all  combined,  and  now  met  t« >  determine  the  final 
question  as  to  the  guilt  of  the  accused  ;  their  preliminary  judgment  baring 
been  given  under  the  influence  of  the  clamor  and  the  causes  to  which  I 
have  adverted.  And  I  appeal  to  the  individual  judgment  of  every  member 
of  this  Board,  if  I  am  not  .right  in  saying,  that  these  circumstances  should 
lead  them  to  the  most  careful  scrutiny — not  scrutiny  of  the  evidence, 
but  scrutiny  of  their  own  hearts  and  their  own  feelings;  so  that  they  may 
be  positively  sure  that  the  judgment  which  shall  be  pronounced,  shall  be 
one  which  they  can  always  recall  with  satisfaction,  and  reflect  upon  without 
regret.  1  have  no  distrust  of  this  tribunal :  I  have  had  the  pleasure  of 
know  ing  for  many  years,  some  of  its  members,  but  I  cannot  shut  my  eyes 
to  the  consideration  that  while  all  these  three  great  functions  are  embodied 
in  the  same  tribunal,  the  tribunal  itself  is,  substantially,  on  trial  before  the 
people,  in  reference  to  this  great  matter.  I  do  not  believe  there  is  any 
determination  to  shake  off  responsibility — any  determination  to  place  it 
where  it  does  not  properly  belong;  but  so  long  as  human  nature  is  frail  and 
erring — so  long  as  we  are  unconsciously  biased  by  the  peculiarities  of  our 
own  position,  just  so  long  should  every  man  search  his  own  conscience, 
and  take  care  that  no  prejudicial  influences  operate  on  his  conduct.  I  am 
uot  insensible  to  the  consequences  of  this  case.  Personally,  I  feel  them 
very  deeply.  If  the  General  Superintendent  is  removed  from  office,  the 
twelfth  section  of  the  statute  junder  which  this  Board  is  constituted,  imposes 
on  him  an  absolute  ineligibility  for  life,  to  any  other  place,  however  inferior, 
in  the  police  force.  It  would  not  only  deprive  him  of  a  position  as  durable 
as  good  behavior,  which  is  the  tenure  by  which  he  holds  his  office,  but  it 
would  prevent  his  ever  being  appointed,  no  matter  what  state  of  things 
may  occur,  to  any  position  in  the  department.  And  hence  the  inference, 
which,  I  submit,  is  a  legitimate  one,  that  it  is  only  for  great  offenses,  for 
serious  neglects  of  duty,  for  that  which  comes  up  to  the  degree  of  absolute 
unfitness  for  place,  that  was  intended  to  be  visited  with  such  serious 
consequences.  Aside  from  the  reflection  which  even  a  censure  would  cast 
upon  his  character,  a  removal  would  produce  much  more  serious  couse- 
quences  in  the  public  estimation,  and  a  sensitive  man,  as  he  is,  would  be 
keenly  alive  to  a  judgment  in  any  form,  however  mild  it  might  be,  which 
would  necessarily  convict  him  of  a  dereliction  of  duty. 

I  think  I  may  say  one  word  in  relation  to  him  personally.  The  place 
which  he  now  occupies  was  not  sought  by  him.  It  sought  him.  He  left  a 
profession  much  more  lucrative  in  its  annual  compensation  than  the  salary 
he  receives  as  General  Superintendent.  He  accepted  it,  too,  after  several 
persons  had  declined  it — declined  it,  because  they  were  unwilling  to  take 
office  under  a  law  which  our  citizens  regarded  with  disfavor  and  opposed, 
and  the  constitutional  validity  of  which  was  denied ;  and  he  accepted  it 
for  the  purpose  of  inaugurating  this  newr  experiment  in  the  government 


6 


of  a  large  district,  which  met  with  so  much  opposition  in  this  city ;  and  his 
large  popularity  and  uniformly  kind  and  urbane  manners  contributed  not  a 
little  to  its  success.  lie  had  occupied  a  great  many  public  positions  before. 
He  went  into  them  with  small  means.  He  was  insensible  to  the  uses  which 
could  be  made  of  office  by  way  of  filling  the  purse,  and  he  came  out  of  them 
w  Lth  as  small  means  as  when  he  went  in.  '  No  man  has  ever  dared  to  make 
the  imputation  against  him  that  he  ever  made  use  of  his  office  to  advance 
his  pecuniary  interests.  The  very  office  which  he  now  holds,  is  one  which 
might  be  perverted,  in  a  large  way,  in  that  direction.  Nobody  has  dared  to 
suggest  that  he  has  ever  done  so.  And  while  I  claim  for  him  no  merit  for 
abstaining  from  practices  so  common  in  this  city,  and  which  have  disgraced 
and  at  the  same  time  enriched  so  many  men,  it  is  proper  that  it  should  be 
alluded  to  in  his  behalf,  as  showing  the  purity  and  integrity  of  his  char- 
acter, and  his  freedom  from  the  prevalent  official  corruption.  So  much, 
then,  if  the  Board  please,  for  these  preliminary  matters.  I  have  regretted 
the  necessity  of  alluding  to  them  at  all.  Perhaps  I  should  not  have 
alluded  to  them.  T  preferred  erring,  however,  if  I  erred  at  all,  on  the 
side  of  my  duty — a  duty  in  some  degree  filial.  If  I  am  blamed  for  it, 
I  am  ready  to  take  the  consequences. 

Now,  I  come  to  the  charges.  I  lay  out  of  view  the  resolutions  which 
were  passed  at  the  time  of  the  suspension.  They  have  not  been  the  sub- 
ject of  consideration  at  all ;  and,  as  I  understood  it,  they  are  substantially 
abandoned,  because  it  is  quite  clear  that  there  was  a  great  mistake,  a  grave 
error,  in  supposing  that  he  had  violated  any  order  given  to  him  by  the 
Board,  or  by  the  President, — for  none  was  given.  I  repeat,  there  is  some 
very  great  mistake  about  it,  I  think  it  is  attributable,  in  some  degree,  to 
the  clamor  to  which  I  have  already  adverted,  because  I  observe  that  in 
the  same  editorial  article  to  which  I  alluded,  it  is  stated  that  one  of  the 
Commissioners  told  the  editor,  in  so  many  words,  that  an  order  had  been 
issued,  directing  a  given  number  of  men  to  be  sent  to  Quarantine,  and 
that  it  had  been  disobeyed,  because  the  General  Superintendent  thought  it 
was  inexpedient  to  obey  it.  An  abundant  cause  for  removal,  if  true.  I 
say,  there  is  some  great  error  about  all  this.  I  pass  it  over,  however,  w  ith- 
out further  remark,  as  it  forms  no  part  of  the  charge,  or  of  the  specifica- 
tions, which  I  am  to  consider. 

Now,  the  charge  is  one  of  absolute  disobedience;  for,  although  called 
neglect  of  duty,  the  specification  brings  it  up  to  disobedience.  The  speci- 
fication is,  "  In  that  he  did  not  repair  in  person  to  the  Quarantine,  on  the 
morning  of  the  2d  of  September  (when  notified  by  Oapt  Weed,  that  sev- 
eral of  the  public  hospitals  had  been  fired  by  a  mob,)  as  required  to  do  by 
Section  45  of  the  Rules  and  Regulations  of  the  Department."  It  is,  then, 
for  absolute  disobedience  to  a  standing  order  of  tine  Board.  It  is  not  for 
;in  ern»r  of  judgment,  or  for  not  doing  that  which  he  did  not  deem  it 


7 

expedient  to  do.  An  error  of  judgment  is  no  offence.  It  is  not  a  subject 
about  which  an  officer,  situated  as  he  is,  can  be  tried.  But  it  is  for  posi- 
tively violating  the  order.    Now,  what  is  the  order  ? 

"§  45.  It  shall  be  hi>  duty  to  repair  in  person  to  all  serious  or  exten- 
sive fires  in  the  cities  of  New  York  and  Brooklyn  ;  to  all  riotous  or 
tumultuous  assemblages  within  the  district,  and  take  command  of  the  po- 
lice present  to  save  and  protect  property,  and  arrest  such  persons  as  he 
may  find  disturbing  the  peace,  or  inciting  others  to  do  so." 

It  is  not  to  go  and  take  cognizance  of  an  exploded  riot>  or  a  dispersed 
mob.    It  is  to  go  to  an  actual  riot, — to  the  assemblage  of  rioters.    It  is 
idle  to  go  where  there  is  no  mob,  or  where  there  are  no  rioters.    He  is  to 
u  take  command  of  the  police  present  to  save  and  protect  property," — 
the  property  which  the  rioters  are  destroying, — "  to  arrest  such  persons  as 
he  may  find  disturbing  the  peace,  or  inciting  others  to  do  so," — that  is, 
to  arrest  those  actually  engaged  in  the  commission  of  the  offences  pointed 
out  by  this  order.    Is  not  this  the  true  construction  of  the  order  ?  And 
while  I  concede  that  it  might  be  judicious  to  send  some  one — (as  De- 
tectives were  sent  at  the  suggestion  of  a  member  of  this  Board) — to  see 
what  had  been  done,  I  deny  that  it  was  the  duty  of  the  General  Superin- 
tendent, or  the  duty  of  any  member  of  the  Board,  to  go  to  Quarantine  and 
see  what  was  the  condition  .of  affairs  there,  on  the  morning  of  the  2d 
of  September;  I  deny  it,  and  I  will  give  my  reasons  for  that  denial 
more  at  large,  by-and-by.    Now,  upon  the  construction  of  the  order,  in 
reference  to  his  own  position,  I  maintain,  and  I  maintain  it  with  a  con- 
viction which  will  findno  doubt  unless  this  Board  decide  the  contrary, — 
and  scarcely  then, — that  his  appropriate  place,  his  appropriate  position,  was 
at  his  office,  at  Head-Quarters,  during  the  day,  in  order  to  determine  what 
should  be  done,  upon  consultation  with  the  Board,  and  on  the  requisition 
of  the  Commissioners  of  Emigration.    And  I  say  that  if  he  had  gone 
away  on  that  occasion,  and  had  not  been  accessible  to  this  Board,  or  to 
any  other  persons  who  might  have  seen  fit  to  apply  to  him,  he  would  have 
been  derelict  to  his  duty.    For  example,  if  he  had  gone  down  and  staid 
all  day,  without  being  in  a  position  to  communicate  with  the  force.  Under 
the  tenth  section  of  the  act  organizing  the  Metropolitan  Police  District,  he 
takes  the  place  of  the  Mayor  of  the  city  for  the  purpose  of  executive  duty, 
expressly  ;  the  Mayor  being  superseded.   Was  it  not  then  his  duty  to  be  at 
his  office,  when  he  knew  the  mob  had  dispersed,  and  when  he  knew  that 
going  down  to  Quarantine  would  be  a  mere  idle  ceremony,  so  far  as  the 
protection  of  property  and  the  arrest  of  offenders  were  concerned  ?  The 
whole  theory  of  the  act  is,  that  he  is  the  executive  head,  subordinate  to 
this  Board,  and  that  he  must  be  in  communication  with  them,  ready  to 
2 


8 


receive  and  execute  their  orders,  or  ready  to  cany  out  orders  originating 
with  himself,  provided  he  receives  none  from  them.  He  has  deputy  su- 
perintendents, he  has  captains,  and  he  has  policemen  under  him.  They 
are  the  hands  and  arms  which  he  is  to  use.  He  is  to  send  them  to 
places  where  they  are  needed  to  ascertain  the  condition  of  things,  whilst 
he  is  to  remain  at  his  post,  ready  to  advise,  to  he  consulted,  and  to  give 
orders.  It  is  never,  in  military  affairs,  deemed  the  duty  of  a  general,  to 
be  at  every  portion  of  the  field,  or  to  be  at  any  particular  portion  of  it, 
unless  in  cases  of  great  emergency.  Never.  Why,  it  is  said  that  General 
*3ates  fought  the  battle  of  Saratoga  chiefly  in  his  own  tent;  and  there  is 
•no  instance  on  record  in  the  history  of  the  most  sanguinary  battles,  of  the 
general  placing  himself  in  such  situation,  unless  in  some  great  emergency, 
or  when  his  presence  will  restore  courage  to  those  who  are  giving  way,  or 
will  accomplish  some  other  great  result.  But  more  than  that,  and  what  I 
regard  as  fundamental  in  this  case,  and  what  must  never  be  lost  sight  of  in 
its  argument,  or  in  its  consideration,  is  the  great  fact,  that  the  whole  Quaran- 
tine property  was  in  the  charge  of  a  body  of  men,  the  Commissioners  of 
Emigration,  to  whom  its  exclusive  care  and  control  were  confided.  By 
the  sixth  section  of  the  law  of  1849,  amending  the  act  of  1847,  we  find 
that  the  Quarantine  property — the  Marine  Hospital,  and  all  its  connec- 
tions, so  far  as  they  belong  to  the  State — are  declared  "  to  be  held  in  trust" — 
mark  the  language — "  by  the  Commissioners  of  Emigration,  for  the  People 
of  the  State,  and  the  sole  and  exclusive  control  of  the  same  is  given  to 
them  except  in  regard  to  the  mere  sanitary  treatment  of  the  inmates." 
As  General  Superintendent  of  Police,  then,  Gen.  Tallmadge  had  nothing 
whatever  to  do  with  this  Quarantine,  nothing  to  do  with  its  protection  as 
such,  nothing  to  do  with  going  to  see  it,  or  providing  for  its  safety.  It  was 
only  when  there  was  in  actual  existence  a  mob,  endangering  its  security, 
that  he  was  to  be  there ;  and  even  then,  it  was  a  matter  of  discretion 
whether  he  should  go  there  or  send  somebody  to  look  after  it  These 
Commissioners  of  Emigration,  then,  are  the  trustees  responsible  for  the 
care  and  for  the  control  of  this  property :  they  are  responsible  to  the 
public,  and  responsible  to  you  as  a  portion  of  that  public.  That,  the  Gene- 
ral Superintendent  knew  ;  and  he  knew,  moreover,  that  in  every  instance 
where  they  had  desired  protection  for  it,  they  got  it  from  him  and  through 
his  order.  They  sought  it  repeatedly  during  the  last  spring  and  summer. 
And  he  knew,  moreover,  that  if  they  thought  it  was  endangered  by  anything 
that  happened  that  day  or  that  night,  it  was  their  duty  to  call  upon  this 
Board  or  upon  himself  for  a  proper  force  to  protect  the  property  thus 
entrusted  to  them.  In  truth,  he  had  no  right  to  go  there  and  violate  the 
Quarantine  laws  at  all ;  because  his  going  there  would  have  been  a  viola- 
tion of  the  Quarantine  rules  and  regulations.    The  whole  theory  of  Quar- 


9 

antine  is  isolation — everybody  is  prevented  from  going  there.  And  he 
knew,  besides,  that  it  was  dangerous  to  go  there,  lie  knew,  as  I  know, 
that  several  years  ago,  a  near  connection  of  his  stood  near  the  gates  of  the 
Quarantine  for  an  hour  or  two  in  the  evening,  and  in  two  days  fell  sick  of 
yellow  fever,  and  continued  ill  for  a  fortnight.  Although  he  was  not 
deterred  by  that,  yet  he  knew  that  the  law  which  isolated  this  property, 
which  made  everybody  who  went  there  without  the  authority  of  the 
Health  Officer,  trespassers,  was  to  be  observed  ;  and  that  his  duty  did  not 
require  him  to  go  there. 

Again,  neither  any  member  of  this  Board  nor  the  General  Superinten- 
dent could  go  there,  even  on  that  day,  without  assuming  that  the  Com- 
missioners of  Emigration  were  neglecting  their  duties,  and  without  an 
impeachment  of  their  fidelity.  They  had  an  office  there  :  they  had  a 
steamboat  in  daily  communication  with  the  Quarantine :  they  were  meet- 
ing every  day  at  the  City  Hall.  To  go  down  there,  under  these  circum- 
stances, and  thereby  assume  that  they  were  neglecting  their  duties,  was  a 
reflection  on  them  which  he  was  not  authorized  to  make. 

Mayor  Tiemann.  You  make  one  remark  there,  Mr.  Xoyes,  in  which  I 
would  like  to  correct  you.  The  Commissioners  of  Emigration  do  not 
meet  every  day  at  the  Hall.    They  meet  at  their  office. 

Mr.  Noyes.  I  correct  it  then,  and  beg  the  Reporter  to  record  the  fact 
as  you  state  it  to  be.  I  intended  to  say,  simply,  that  they  met  every  day, 
and  that  the  presumption  was  that  they  would  attend  to  their  duty,  and 
had  attended  to  it.  Then,  this  Board  and  the  General  Superintendent  had 
a  right  to  presume,  from  the  fact  that  no  notice  was  given  to  him,  that 
there  was  no  danger,  and  that  he  was  not  required  to  be  present.  I  put 
this  upon  the  ground,  which  I  consider  perfectly  defensible  and  unassail- 
able, that  as  long  as  they  did  not  receive  a  notice  or  an  intimation  from 
the  Commissioners  of  Emigration,  the  trustees  of  these  buildings,  that 
they  were  in  danger  that  night,  they  had  a  perfect  right  to  stay  here  to 
attend  to  their  ordinary  duties,  and  not  interfere  with  the  duties  of  the 
Commissioners  of  Emigration.  Now,  the  latter  took  no  action  whatever  in 
any  form  until  after  two  o'clock.  None  whatever.  It  was  half  past  two,  I 
think,  before  Capt.  Crabtree  left  this  office.  It  was  a  quarter  past  two,  I 
think,  when  he  had  the  conversation  with  Gen.  Xye ;  and  up  to  that  time, 
ten  or  twelve  hours  having  elapsed  from  the  dispersion  of  the  rioters,  no 
communication  was  made  to  this  Board,  devolving  any  duty  upon  it  or 
upon  the  General  Superintendent  to  protect  this  property.  There  is  no 
more  obligation  to  protect  Quarantine  than  there  is  to  protect  the  Sailor's 
Snug  Harbor ;  and  is  it  possible  that  this  Board  could  be  considered  as 
derelict  in  its  duty,  if,  having  heard  that  the  buildings  had  been  destroyed 
at  the  Sailor's  Snug  Harbor  by  a  mob,  and  having  received  no  notice  from 


10 


the  persons  in  charge  of  it,  they  did  not  go  down  and  look  at  it,  or  send  a 
force  for  its  protection  ?  I  submit,  with  a  confidence  that  knows  no  doubt 
at  all,  that  no  such  duty  is  cast  upon  this  Board.  This  Board,  then,  did, 
up  to  that  time,  everything  that  was  required  of  them ;  and  I  shall  show 
that  the  General  Superintendent,  in  like  manner,  did  every  thing  that  was 
required  of  him.  The  matter  was  talked  about  here  among  the  members 
of  the  Board ;  and,  the  affair  being  one  of  great  importance,  two  or  three 
detectives  were  sent  down.  What  more  could  they  do?  I  ask  the 
fault-finding  man  on  this  occasion,  what  arguments  can  be  advanced  against 
the  Board  and  the  General  Superintendent  ?  What  more  could  have  been 
done  ?  What  difficulty  or  disaster  could  they  have  prevented,  during  the 
day-time  of  the  second  of  September  ?  None  whatever,  because  none  was 
impending.  Now,  the  act  under  which  this  Board  is  organized,  never  con- 
templated that  portions  of  the  police  force  should  be  sent  to  Quarantine, 
ad  libitum.  The  19th  section  of  the  law  provides  that  the  Health  Officer 
shall  only  be  entitled  to  call  for  ten  men  at  a  time  for  twenty-four  hours ; 
showing  that  it  never  was  designed  as  a  general  rule  that  this  Board  should 
concentrate  any  considerable  portion  of  its  force  there,  even  in  an  emergen*  }  : 
and  this  contemplates  an  emergency.  It  was  supposed  that  it  might  be 
necessary  to  have  men  there  occasionally,  but  it  never  was  designed  by  the 
act  itself — it  is  not  within  the  appropriate  sphere  of  duty  of  the  Police  Board 
— that  any  considerable  portion  of  its  force  should  be  sent  there  at  any  time, 
or  without  a  request  from  the  recognized  sources  of  authority,  at  all  events. 
The  Health  Officer,  then,  and  the  Commissioners  of  Emigration,  were  the 
persons  in  charge  of  this  establishment  by  law.  The  Health  Officer  did 
nothing.  He  never  communicated  with  the  Board  personally  or  by  his 
assistants.  The  Commissioners  of  Emigration,  as  a  Board,  never  communi- 
cated with  this  Board  or  with  its  members,  until  the  time  of  which  I 
have  spoken. 

I  ought  not  to  omit  noticing  in  this  connection,  in  reference  to  the 
alleged  duty  of  the  General  Superintendent  to  go  down  there,  that  he  had 
an  understanding  (though  I  don't  know  how  it  was  with  the  members  of 
this  Board)  that  all  had  been  done  by  the  rioters  which  they  intended  to 
do:  that  the  Quarantine  buildings,  so  far  as  they  belonged  to  the  State,  had 
all  been  destroyed.  He  was,  doubtless,  under  a  misapprehension  on  that 
subject ;  but  the  fact  that  he  believed  otherwise  is  one  of  very  great  im- 
portance, when  we  come  to  judge  of  his  motives,  and  consider  the  question 
whether  lie  performed  his  duty.  I  not  only  ask,  then,  the  vindication  of  the 
General  Superintendent  in  consequence  of  the  omission  of  the  Health  Officer 
and  of  the  Commissioners  of  Emigration  to  call  upon  him,  but  I  ask  it  also  as  a 
matter  of  justice  from  this  Board,  because  they  failed  to  call  upon  him.  They 
knew  just  as  much  about  it  as  he  did,  with  the  single  exception  of  the  interview 
with  ( 'apt.  Weed,  in  which  the  latter  informed  him  of  what  had  been  done,  as 


11 


reported  by  the  Harbor  Policemen  who  came  up  from  Staten  Island.  They 
knew  just  as  much  about  it  as  he  did ;  because  the  newspapers  contained  it 
all,  and  it  was  a  common  subject  of  conversation.  The  tact,  then,  that  not 
a  single  member  of  this  Board  deemed  it  his  duty  to  communicate  with 
the  General  Superintendent,  or  to  talk  with  him  on  the  subject,  to  ask  him 
to  go  down,  or  to  send  down,  or  to  suggest  to  any  one  about  the  General 
Superintendent,  that  any  one  should  be  sent  down  but  the  detectives,  I 
place  before  the  Board,  as  prominent  reasons  why  this  charge  should  not 
be  sustained ;  because  it  shows  that  the  Board  themselves  did  not  consider 
that  they  thought  it  necessary  that  any  thing  should  be  done. 

And  now,  in  reference  to  his  time  of  going  down.  It  was  near  four 
o'clock  when  Capt.  Weed  and  the  Harbor  Policemen  left  his  house.  It 
was  agreed  on  between  them — not  arranged,  but  agreed — that  there  were 
no  means  of  getting  down  earlier  than  by  the  six-o'clock  boat.  It  was 
obvious  that  a  force  could  not  be  sent  down  there  before  that  hour.  And 
besides,  such  a  proceeding  would  have  been  entirely  inexpedient  and  unne- 
cessary ;  because  the  rioters  had  all  dispersed  on  the  break  of  day,  and  there 
were  no  threatened  injuries  impending  which  could  then  be  prevented. 
What  did  he  do,  then  ?  He  ordered  a  force  to  be  kept  in  readiness  ;  and 
the  telegraphic  minutes  which  have  been  given  in  evidence,  show  that 
that  force  was  in  readiness  at  twenty  minutes  past  four  o'clock. 

Capt.  Carpenter  swears  that  it  was  kept  in  readiness  by  means  of  reliefs 
during  the  whole  day.  From  six  to  eight  wards  were  telegraphed  to  for  an 
additional  force,  and  in  order  that  the  relief  might  be  kept  in  a  condition 
to  go  down  to  Quarantine  the  moment  it  should  be  called  on.  And  they 
were  so  kept ;  for  Capt.  Carpenter  says  he  could  have  sent  a  force  down  any 
time  during  the  morning,  after  half  past  four  o'clock,  if  the  Commissioners 
had  ordered  it.  After  ten  o'clock,  he  and  the  General  Superintendent  dis- 
missed the  first  force  detailed  to  go  down,  putting  in  its  place  the  relief  force, 
because  nothing  transpired  which  required  immediate  action,  and  this  relief 
force  was  ample  to  afford  the  requisite  protection.  I  call  attention  to  the 
remark  of  Capt.  Carpenter,  when  asked  whether  he  would  have  gone  down 
without  a  requisition  from  the  Commissioners  of  Emigration.  The  answer 
is  important.  He  said  he  might  have  been  rash  enough  to  go  without  an 
order ;  show  ing  a  concurrence,  so  far  as  the  expediency  of  going  down  was 
concerned,  between  him  and  the  General  Superintendent,  and  that  in  regard 
to  going  without  an  order  from  the  Commissioners,  he  deemed  that  to  be 
an  act  of  rashness. 

In  speaking  of  the  first  specification,  I  have  insensibly  adverted,  as  all 
the  charges  are  necessarily  connected,  to  the  second.  I  proceed  now  to 
consider  that  more  fully.  It  charges  that  the  General  Superintendent  did 
not,  on  the  morning  of  September  the  second,  direct  patrolmen  to  be  sta- 


12 


tioned  at  Quarantine  to  protect  the  public  property  which  had  not  been 
fired.  I  beg  attention  to  the  specification  :  that  he  "  did  not,  on  the  morning 
of  the  second  of  September,  direct  patrolmen  to  be  stationed  at  Quaran- 
tine." It  does  not  charge  him  with  neglecting  to  send  men  in  the  afternoon, 
or  in  the  evening,  because  the  Board  knew  that  he  had  given  the  order  in 
the  evening,  and  that  it  would  have  been  carried  out  but  for  the  information 
which  he  received  from  the  Mayor,  warranting  a  countermanding  of  the 
order.  Now,  I  deny  that  it  was  necessary  he  should  do  it  in  the  morning. 
No  injur}7  has  resulted  from  its  not  being  done  then.  He  was  wise  in  not 
doing  it,  because  there  was  nothing  to  be  done.  It  shows  that  he  acted  with 
wisdom  in  reference  to  sending  down  men  in  the  morning ;  because  there 
was  no  mob  there — no  rioters  to  be  dispersed,  no  property  to  be  protected. 
He  had  them  ready  to  go  all  day,  and  would  have  sent  them  down ;  and  I 
say  that  he  had  a  right,  in  the  exercise  of  the  judgment  which  is  confided 
to  every  executive  officer,  to  be  cautious.  He  was  bound  to  be  cautious. 
And  why  was  he  bound  to  be  cautious  \  Only  a  few  days  before,  a  police 
force  had  been  sent  down,  at  the  requisition  of  the  Health  Officer,  and  they 
were  treated  with  positive  neglect,  if  not  inhumanity — men  for  whom  he 
has  a  tender  regard,  whose  personal  and  pecuniary  interests  he  was  bound 
to  protect,  and  provide  for,  as  far  as  he  could  by  the  proper  exercise  of  his 
duties.  When  the  officer  in  charge  of  them  applied  to  the  Health  Officer,  who 
had  sent  for  them,  to  provide  them  with  food,  he  said,  with  a  selfishness  that 
does  him  no  credit, 11  You  must  grub  for  yourselves."  These  men  are  receiv- 
ing a  small  daily  compensation  to  support  themselves  and  their  families ; 
and  he  was  not  bound  to  rush  fifty  or  a  hundred  of  them  down  there,  to  sus- 
tain themselves  at  an  expense  larger  than  their  pay.  I  say  he  was  not.  He 
was  right,  therefore,  in  exercising  caution  in  relation  to  sending  them  there 
— not,  indeed,  refraining  from  sending  them  there  at  once,  if  the  emergency 
required  it,  and  they  were  demanded  by  the  Commissioners  of  Emigration, — 
but  sending  them  there  when  he  knew  they  would  be  provided  for,  and  that 
there  would  be  something  for  them  to  do.  He  was  not  bound  to  send  them 
to  the  county  of  Richmond,  which  had  been  recusant  in  the  whole  matter 
of  the  Metropolitan  Police  Bill ;  which  had  never  contributed  a  dollar  to 
pay  its  quota  of  the  expenses  of  the  act, — the  wisest  act  of  police  legisla- 
tion ever  enacted  in  America,  or  anywhere  else, — without  some  assurance 
that  the  men  would  be  provided  for,  and  supported  while  there.  The  pre- 
valence of  yellow  fever  was  another  reason  why  he  should  exercise  caution 
in  sending  them  down.  Some  people  treat  this  matter  as  if  yellow  fever 
was  a  thing  of  no  concern.  But  the  laws  have  not  so  treated  it.  Public 
sentiment  has  not  so  treated  it.  Public  apprehension  has  not  so  treated  it. 
Those  very  benevolent  rioters  at  Staten  Island  have  not  so  treated  it ;  and 
they  regard  even  the  presence  of  the  Quarantine  as  a  calamity — a  nuisance 


13 


which  they  are  authorized  to  remove  without  law  and  against  law — beeau>< 
it  brings  the  yellow  fever  there. 

And  was  the  General  Superintendent  rashly  to  send  down  a  body  of 
men  to  communicate  with  this  Quarantine,  inside  the  walls, — beyond  which,, 
even,  yellow  fever  prevailed, — without  considering  the  risk,  and,  above  all. 
without  hearing  from  the  Commissioners  of  Emigration,  or  the  Health 
Officer,  that  it  was  prudent  and  necessary  to  send  them  down  ?  I  say  he 
was  not.  In  the  merciful  dispensations  of  Providence,  mitigating  the  effect* 
of  this  great  crime,  and  tempering  what  might  otherwise  have  been  a  great 
calamity,  the  fever  has  not  spread.  But  it  has  not  been  owing  to  these 
rioters  that  it  has  not.  And  I  say  that  the  General  Superintendent  wisely 
refrained  from  adding  to  the  number  of  persons  who  should,  by  their  con- 
tact with  the  people  outside  of  the  Quarantine,  when  they  returned  to  the 
city,  contribute  to  spread  the  pestilence  throughout  the  community.  1  say 
that  the  care  which  he  exercised  is  creditable  to  his  wisdom,  to  his  pru- 
dence, and  showed  that  he  has  acted  with  discretion.  I  shall  dismiss  the 
suggestion  which  has  been  made  in  some  quarters,  and  which  some  wit- 
nesses here,  with  overheated  eagerness  have  attempted  to  enforce,  that  he 
was  influenced  by  fear.  Fear!  An  emotion  which  he  never  knew.  No- 
fear  of  mobs,  no  fear  of  yellow  fever,  ever  disturbed  his  heart.  The  man. 
who  faced  the  Astor  Place  rioters  when  the  State  Executive,  the  Mayor,  and 
other  city  officials,  displayed  the  tallest  white  feathers, — the  man  who  retired! 
covered  with  bruises  from  missiles  hurled  at  him  as  thick  as  hail,  from  the 
mob,  after  announcing  that  they  would  be  fired  upon  unless  they  dispersed, 
and  who  was  unable  to  walk  for  nearly  a  week  afterwards, — the  man  in 
whose  veins  flows  the  blood  of  a  gallant  officer  of  the  Revolution,  and  of  a 
signer  of  the  Declaration  of  Independence, — never  knew  what  fear  was  on 
such  an  occasion  as  this.  I  dismiss  that  topic  as  unworthy  of  being  intro- 
duced here,  and  as  having  no  sort  of  foundation  in  troth.  The  police 
were  not  sent  down  there ;  because  it  wras  not  necessary  to  send  them. 
There  was  nothing  for  them  to  do.  He  had  not  been  asked  to  send  them 
down.  He  had  not  been  asked  by  the  constituted  authorities  in  charge  of 
the  property.  He  showed,  on  the  next  day,  that  he  was  not  influenced  by 
any  other  motive  than  the  pure  discharge  of  his  duty,  because  with  several 
of  the  Police  Commissioners,  and  with  a  large  body  of  policemen,  he  went 
there,  remained  there  during  the  night  as  much  exposed  as  any  one,  and 
showed  a  determination  to  discharge  his  duty  faithfully,  as  soon  as  the 
guardians  of  this  property,  its  lawful  custodians,  demanded  additional  pro- 
tection. There  is  nothing  against  him,  then,  but  this  standing  order,  the 
45th,  which  requires  him  to  go  to  a  riot  or  to  a  fire,  in  certain  contingen- 
cies ;  and  these  had  not  arisen,  or  were  passed.  To  sum  up  all  that  I  have 
to  say  on  this  point :  He  received  no  direction  or  suggestion  from  this 


Board  that  he  should  go,  or  that  it  was  necessary  he  should  go :  he 
received  none  from  the  Commissioners  of  Emigration :  he  received  none 
from  the  Health  Officer  :    and  I  say  that  the  silence  of  his  superiors,  as 
well  as  the  silence  of  those  who  had  a  right  to  call  upon  him,  justifies  him 
in  what  he  did, — remaining'here  and  awaiting  the  action  of  those  upon 
whom  the  law  expressly  devolved  the  duty  of  protecting  the  property. 
But  I  go  farther  than  this.    The  order  of  Gen.  Nye,  which  he  received 
about  half  past  three,  absolutely  forbade  his  sending  men  down  unless  he 
was  ordered  to  do  so.    I  say  it  forbade  him — because  its  true  construction 
is,  that  men  were  not  to  go  down  unless  the  number  of  men  wanted  was 
indicated  to  him  by  the  Commissioners  of  Emigration.    "  You  will  send 
what  men  the  Commissioners  of  Emigration  want  to  Quarantine  to-night, 
to  guard  the  remainder  of  the  buildings."    That  implied  that  the  Com- 
missioners of  Emigration  had  said  they  would  probably  want  some  men, 
and  that  the  number  of  men  was  to  be  indicated.    He  had  a  right  to 
regard  that  as  an  intimation  from  his  superior  (treating  it  now  as  ema- 
nating from  a  lawful  authority,  though  issued  by  an  individual  commis- 
sioner, who,  in  truth,  has  no  right  to  issue  it — and  I  treat  it  so  for  the 
purposes  of  this  argument) — as  an  intimation  from  his  superior,  that  he 
must  wait,  and  send  men  down  when  informed  of  the  number  that  were 
wanted  by  the  Commissioners  of  Emigration,  and  only  then,  so  that  if  he 
had  determined  before,  upon  his  own  judgment,  in  reference  to  the  proba- 
bilities of  the  want  of  a  force,  to  send  them  down,  he  would  not  have  been 
justified  in  sending  them  down  without  knowing  that  they  were  wanted, 
and,  if  they  were,  how  many  were  wanted.    I  speak  now,  of  course,  upon 
the  construction  of  that  order,  from  its  language,  and  irrespective  of  what 
may  have  passed  between  Gen.  Nye  and  Capt,  Crabtree,  because  Mr.  Tall- 
madge  knew  nothing  whatever  of  their  conversation.     He  could  only 
speak  from  the  order.    He  could  only  judge  from  the  order.    And  I  sub- 
mit that  he  judged  properly.    And  his  judgment  was  concurred  in  by 
Capt,  Carpenter ;  the  one  waiting  till  four  o'clock,  when  he  went  into  the 
country  to  see  a  sick  wife ;  and  the  other  till  some  time  after  five,  when  he 
went  to  his  residence  to  dress  for  the  municipal  dinner.    But  more  than 
all  this:  this  order  of  Gen,  Nye  is  an  approval  of  his  course  up  to  that 
time.    I  don't  know  whether  it  was  so  intended  ;  1  only  speak  of  its  Legit- 
imate construction  and  effect.    The  General  knew  no  men  had  been  sent 
down.    There  was  no  suggestion  made  to  the  General  Superintendent,  that 
men  ought  to  have  been  sent  down  ;  he  is  simply  told  by  the  President  of 
the  Board  to  send  down  what  men  the  Commissioners  of  Emigration  want. 
That,  I  say,  is  an  approval  of  what  he  had  done,  up  to  that  period.  It 
certainly  was  its  meaning,  and  it  conveyed  only  that  meaning  to  him  ;  and 
I  submit,  that  sending  them  down  afterwards  into  this  pestilential  locality 


15 


without  any  provision  for  their  sustenance,  and  with  the  probability  that 
they  would  be  treated  just  as  the  former  force  had  been  treated,  would 
have  been  a  substantial  violation  of  that  order  ;  because  it  was  to  send  what 
men  the  Commissioners  of  Emigration  wanted,  not  to  send  what  men 
"  You  "  want,  or  what  men  "  You  "  think  ought  to  go  there.  It  was  with- 
drawing the  whole  matter  from  his  own  judgment  in  reference  to  the  expe- 
diencv  and  necessity  of  doing  this,  and  placing  it  where  it  might  properly 
be  placed,  and  where  it  was  properly  placed,  and  where,  indeed,  it  already 
belonged, — with  the  Commissioners  of  Emigration  j  throwing  upon  them 
the  necessity  of  taking  the  initial  step — of  asking  for  the  men,  and  desig- 
nating the  number.  It  is  not  to  be  overlooked  in  this  connection,  that  no 
men  had  ever  been  sent  there  before  without  a  requisition.  I  understand 
that  the  Board  have  been  opposed  to  men's  being  sent  there  without  a 
requisition,  and  the  78th  rule  has  an  intimation  upon  that  subject  stringent  in 
its  character,  and  very  suggestive  of  consequences,  if  it  should  be  violated. 
u  Patrolmen  and  Doormen  shall  not  be  detailed  for  special  duty  out  of  the 
precincts  to  which  they  are  assigned,  for  a  longer  period  than  twenty-four 
hours,  except  by  resolution  of  the  Board  of  Police.1'  He  can  only  send 
them  for  twenty-four  hours,  except  by  resolution  of  the  Board  of  Police ; 
**  nor  shall  any  Patrolmen  or  Doormen  be  detailed  for  any  special  duty  with- 
out his  precinct,  except  by  resolution  of  the  Board  of  Police thus  show- 
ing— and  I  make  no  complaint  of  it — that  the  executive  discretion  of  the 
Superintendent  has  been  greatly  abridged  by  the  Board.  It  was  proper 
that  the  Commissioners  of  Emigration,  having  a  large  fund  in  their  hands, 
the  proceeds  of  the  payments  made  by  emigrants,  should  make  this  re- 
quest, in  order  that  they  might  be  responsible  for  the  sustenance  of  the 
men ;  because  the  Quarantine  is  chiefly  required  on  account  of  the  emi- 
grants, and  it  was  eminently  proper  that  this  already  over-taxed  city  should 
not  be  subjected  to  these  expenses.  If  I  am  right,  then,  in  assuming,  and 
if,  as  I  believe,  I  have  successfully  proved,  that  the  burthen  of  this  matter, 
so  far  as  the  protection  of  the  Quarantine  grounds  from  further  outrage 
was  concerned,  rested  primarily  with  the  Commissioners  of  Emigration,  I 
have,  in  vindicating  the  General  Superintendent  from  the  charge  of  inten- 
tional neglect  of  duty,  succeeded  also  in  vindicating  the  Board  of  Police 
Commissioners. 

Of  course  it  is  no  part  of  my  peculiar  duty  in  this  case,  as  counsel  for 
the  defendant,  to  vindicate  the  Board ;  but  I  take  great  pleasure  in  doing 
so,  so  far  as  any  effort  of  mine  will  tend  to  that  end.  This  subject  neces- 
sarily lay  in  the  way  of  the  consideration  of  the  defence  of  the  accused, 
and  the  one  could  not  be  well  considered  without  including  the  other.  I 
place  myself,  then,  upon  the  firm  foundation  that  this  Board  was  not 
authorized  to  interfere  :  that  the  General  Superintendent  was  not  author- 


16 


ized  or  bound  to  interfere  with  this  property  in  the  control  of  these  Trustees, 
the  Commissioners  of  Emigration,  without  their  request  and  without  notice 
from  them  that  it  was  demanded.  They  made  no  request  as  a  Board. 
They  took  no  action  as  a  Board.  All  that  they  did  was  to  send  one  of 
their  number,  or  rather,  he  came  spontaneously,  without  being  sent,  to 
Gen.  Nye  to  have  a  conversation  upon  the  subject.  Now  in  reference  to 
the  General  Superintendent,  it  is  important  to  observe  that  Capt.  Crabtree 
never  went  near  him.  He  avoided  the  executive  power  and  went  to  the 
legislative.  He  avoided  the  person  occupying  substantially  the  position  of 
Mayor  of  the  city,  with  executive  duties,  and  went  to  one  of  the  Commis- 
sioners, as  if  a  man  had  gone  to  the  President  of  either  of  the  Boards 
constituting  the  Common  Council,  wrhich  is  charged  only  with  legislative 
duties.  He  did  not  even  go  to  the  Board,  but  to  an  individual  member 
of  it.  That  was  the  first  great  omission.  If  he  went  there  because  he 
supposed  the  power  rested  with  the  Board,  or  with  an  individual  member 
of  it,  that  was  all  well  enough.  If  he  went  there  because  he  supposed  the 
executive  powers  of  the  General  Superintendent  had  been  abridged  and  he 
was  justified  in  disregarding  him,  that  was  well  enough,  so  far  as  the 
motives  of  the  Commissioners  of  Emigration  were  concerned.  But  he 
avoided  the  executive  and  went  to  a  member  of  the  legislative  department 
of  this  Board.  And  under  what  circumstances  did  he  go  ?  Without  any 
written  action  of  his  Board,  without  any  formal  requisition,  with  a  mere 
oral  request,  a  mere  verbal  intimation.  And  what  was  his  condition  ? 
According  to  his  own  statement,  he  was  suffering  under  an  acute  attack  of 
rheumatism  so  that,  to  use  his  own  language,  he  was  "  almost  distracted." 
In  a  condition  unfitting  him  not  only  for  a  correct  relation  of  what  he 
wanted,  but  unfitting  him  for  remembering  with  accuracy  what  he  had 
declared  he  wanted ;  he  had  a  hasty  conversation  with  the  President  of 
the  Board,  and  then  went  away.  The  inaccuracy  of  some  of  his  assertions 
shows  a  tendency  to  a  want  of  certainty  in  statement,  and  a  want  of  clear- 
ness in  recollection,  which  render  it  difficult  if  not  impossible  to  obtain 
from  him  a  true  account  of  what  occurred.  I  speak  this  without  designing 
to  reflect  upon  Capt.  Crabtree  in  the  slightest  degree.  A  long  time  ago 
I  had  the  pleasure  of  knowing  him  very  well ;  I  have  not  seen  him,  it  is 
true,  for  many  years,  but  I  know  him  to  be  a  man  of  the  most  perfect 
integrity,  and  as  honest-hearted  and  generous  a  sailor  as  ever  lived.  I 
speak  of  this  circumstance,  however,  as  one  which  it  is  my  duty  to  present 
and  examine,  for  the  purpose  of  seeing  where  the  responsibility  rests. 
Now,  according  to  his  statement,  the  responsibility  of  giving  an  absolute 
order  for  men  would  be  thrown  upon  Gen.  Nye.  He  states  that  Gen.  Nye 
agreed  to  send  sixty  men,  and  to  give  an  order  for  that  purpose  to  the 
General  Superintendent,  without  further  communication  with  him.  Upon 


17 


that  point,  Gen.  Nye's  testimony  is  entirely  at  variance  with  that  of  Capt. 
Crabtree.  Although  it  is  no  part  of  my  duty  to  settle  this  conflict  of 
evidence,  because  it  does  not  affect  the  case  of  the  General  Superintendent 
in  the  slightest  degree, — he  has  nothing  whatever  to  do  with  it, — yet,  for 
the  purpose  of  seeing  where  the  responsibility  rests,  it  is  proper  I  should 
give  some  views  concerning  it.  Now  Gen.  Nye  says  that  sixty  was  men- 
tioned as  the  probable  number  of  men  that  would  be  wanted,  and  that 
Capt.  Crabtree  said  that  he  would  return  to  his  Board,  which  met  at  three 
o'clock,  only  half  an  hour  distant,  and  then  he  would  communicate  to  this 
Board,  or  to  its  executive  officer,  the  General  Superintendent,  the  number 
of  men  that  he  wanted.  That  is  Gen.  Nye's  statement ;  and  this  Board 
ought  to  take  it  as  a  true  statement.  That  it  is  entirely  true  nobody  doubts. 
That  Capt.  Crabtree  is  inaccurate,  and  that  Gen.  Nye  may  fall  into  occas- 
ional errors,  may  also  be  true,  for  all  men  do  so.  But  there  is  a  single 
fact  which  controls  my  own  judgment,  which  convinces  me  beyond  the 
possibility  of  a  doubt,  and  I  think  it  ought  to  convince  the  Board  beyond 
the  possibility  of  a  doubt,  that  Capt.  Crabtree  is  mistaken.  There  is  first 
his  condition,  his  want  of  recollection,  and  the  hasty  and  excited  manner 
in  which  he  made  the  communication.  But  then,  over  and  above  all, 
Gen.  Nye  made  a  written  order,  immediately  and  on  the  instant,  condi- 
tional in  its  character,  and  precisely  in  accordance  with  the  communica- 
tion which  he  says  had  been  made  to  him,  to  send  as  many  men  as  they 
wanted,  the  number  to  be  designated  by  Capt.  Crabtree  or  by  his  Board. 
Mark  the  language.:  "You  will  send  what  men  the  Commissioners  of  Emi- 
gration want  to  Quarantine."  That  is  in  entire  harmony  with  Gen.  Nye's 
view  of  the  conversation.  It  was  written  at  the  instant,  and  his  memory 
was  refreshed  and  preserved  by  what  he  wrote.  If  Capt.  Crabtree  had 
said  to  him  that  he  wished  him  to  send  sixty  men  at  any  rate,  and  he  had 
agreed  to  send  that  number  of  men,  would  he  have  sjiven  such  an  order  as 
that  ?  No,  assuredly  not.  I  know,  and  every  other  lawyer  knows,  that 
conversations,  although  they  may  be  reported  with  the  best  possible  inten- 
tions as  to  honesty  and  accuracy,  are  scarcely  ever  reliable.  It  is  a  rule  of 
the  Irish  Chancery  that  the  declarations  of  a  party  never  shall  be  given  in 
evidence  unless  they  are  set  forth  in  the  bill  or  answer,  and  the  party  against 
whom  they  are  alleged  has  an  opportunity  of  examining  them,  and  giving 
his  own  relation  or  explanation  concerning  them,  because  accounts  of  con- 
versations are  so  extremely  unreliable.  It  would  be  a  wise  rule  that  should 
exclude  all  declarations.  They  are  scarcely  ever  accurately  recollected ; 
because  so  much  depends  upon  a  phrase,  so  much  depends  upon  the  acci- 
dental substitution  of  an  equivalent  word  or  phrase,  or  what  the  party 
deems  an  equivalentffor  what  has  been  said.  The  only  reliable  testimony 
in  such  cases  is"  what  has  been  written.    Here  Gen.  Nye  took  down  the 


18 


substance  of  Capt.  Crabtree's  communication,  the  substance  of  what  he 
(Gen.  Nye),  in  that  conversation  agreed  to  do ;  and  that  was,  that  there 
should  be  sent  to  Quarantine  the  number  of  policemen  the  Commissioners 
of  Emigration  should  call  for.  And  that  is  the  whole  of  it.  If  I  am 
right  in  this,  then  this  Board,  and  the  individual  members  of  this  Board, 
are  utterly  blameless,  in  that  a  force  was  not  sent  down.  The  force  would 
have  been  sent,  if  the  Commissioners  of  Emigration  had  made  a  requisition 
for  it.  Gen.  Nye  returned  in  haste  from  the  Station  House  at  the  12th 
Ward,  at  Harlem,  where  he  had  gone  after  giving  the  order,  and  came 
here  at  seven  o'clock  for  the  purpose  of  sending  a  force  down,  after  he  got 
the  telegraphic  dispatch  from  the  Mayor.  The  General  Superintendent 
himself  ordered  a  force  to  go  down  there  when  he  was  commencing  his 
attendance  at  the  Metropolitan  dinner.  A  force  would  have  been  there, 
beyond  all  question,  if  the  Commissioners  of  Emigration  had  performed 
their  duty  in  positively  directing  Gen.  Nye  to  send  a  force  down,  or  in 
communicating  to  him  the  number  of  men  they  wanted.  And  if  the 
Board  in  this  matter  is  blameless,  how  much  more  is  the  General  Super- 
intendent blameless ;  because  he  knew  nothing  of  this  interview  till  long 
afterwards.  He  had  no  communication  with  Capt.  Crabtree.  Wh ether 
intentional  or  not,  Capt.  Crabtree  had  not  gone  to  him  as  the  executive 
head  of  the  police,  to  ask  him  to  act ;  and,  during  the  whole  day,  until  the 
General  Superintendent  reached  the  Metropolitan  Hotel,  it  was  not  commun- 
icated to  him  that  there  was  a  design  to  fire  the  additional  buildings  that 
night.  Now,  did  the  General  Superintendent  carefully  attempt  to  obey 
that  order,  which  undoubtedly  was  given  and  communicated  to  him  by 
Gen.  Nye?  Why,  we  have  Capt.  Carpenter  proving  it;  we  have  Mr. 
Brevoort  proving  it;  and  we  have  nothing  to  gainsay  it.  Nothing  what- 
ever, except  that  one  of  the  officers  reports  snatches  of  remarks  which  he 
savs  he  heard  from  the  General  Superintendent  in  the  hall,  and  which  he 
wishes  to  have  the  Board  suppose  indicated  a  determination  on  the  part  of 
the  General  Superintendent  not  to  send  a  force  down.  Well,  I  have  made 
some  observations  as  to  the  weight  to  be  given  to  declarations ;  and  how 
much  less  weight  is  to  be  given  to  detached  declarations — a  mere  fragment 
— caught  up  and  reported,  from  good  or  from  bad  motives,  and  separated 
from  the  context  ?  What  is  it  worth  ?  What  is  it  worth,  to  affect  the 
character  of  an  honorable  man,  an  officer  in  high  position  ?  I  don't  know 
whether  it  comes  under  the  denomination  of  eaves-dropping,  which  is  a 
criminal  offence  in  England  and  in  this  country  ;  but  I  am  perfectly  satisfied 
that  the  reports  of  conversations  made  in  that  way  and  under  such  cir- 
cumstances, are  utterly  unworthy  of  credit,  and  reflect  only  discredit  on 
him  who  relates  them. 

I  have,  thus  far,  examined  the  specifications  of  the  charge,  and,  I  trust, 


19 


with  this  result :  that  the  General  Superintendent  judge  dwisely  in  not  send- 
ing the  men  down  that  morning  without  a  requisition  from  the  Commis- 
sioners of  Emigration,  or  from  the  Health  Officer ;  because  there  was  nothing 
for  them  to  do ;  and  because  no  damage  was  done,  as  the  burning  of  the 
additional  buildings  was  in  no  sense,  imputable  to  the  delay  in  sending 
down  men  that  morning  or  that  day.  I  wish  to  discriminate,  of  course, 
between  what  was  done  before  the  receipt  of  Gen.  Nye's  order,  and  after- 
wards ;  because  in  respect  to  the  sending  of  men  down  after  the  conversa- 
tion with  the  Mayor,  a  different  class  of  circumstances  must  be  brought 
into  review. 

Now,  to  show  the  absence  of  any  unwillingness  to  send  men  down 
there,  to  show  the  absence  of  all  this  imputed  fear  on  his  part,  I  advert  to  a 
grave  fact,  that  when  at  the  Metropolitan  dinner,  he  was  informed  of  the 
condition  of  affairs,  by  the  Mayor,  as  an  ex-officio  member  of  the  Board  of 
Commissioners  of  Emigration,  and  without  any  order,  he  expressed  his 
readiness  to  send  men  down,  actually  gave  the  order,  and  was  about  send- 
ing them  down.  He  had  received  no  requisition  ;  he  had  w  aited  here  for 
the  purpose  of  receiving  it,  but  being  there  told  by  one  of  the  Commis- 
sioners of  Emigration,  that  it  was  necessary  to  send  them  down,  he  imme- 
diately put  the  force  in  operation,  and  would  have  had  them  there  long 
before  the  marines  arrived,  unless  Capt.  Rich  is  right  in  saying  that  they 
got  there  before  five  o'clock ;  and  to  show  his  alacrity  and  zeal,  I  rely 
upon  the  fact  that  he  sent  without  orders,  because  he  was  informed  of  the 
emergency  which  -rendered  it  proper  and  necessary*.  Now,  why  was  he 
prevented  from  doing  it  ?  All  the  evidence  shows  that  he  was  desirous 
and  anxious  to  do  it.  Gen.  Nye  himself  was  at  the  Metropolitan  Hotel, 
and  sent  up  a  note  to  the  Mayor  to  know  what  should  be  done.  The  Gen- 
eral Superintendent  would  have  gone  down  himself;  and  both  would  have 
co-operated ;  and  why  was  he  prevented  ?  Why,  Mayor  Tiemann,  a  portion 
of  whose  testimony  I  will  read,  gives  the  answer  :  "  Subsequently,  at  the 
Municipal  dinner,  witness  saw  Mr.  Stranahan,  and  was  informed  by  him 
that  no  men  had  been  sent  down  ;  he  (witness)  thereupon  said  he  would 
have  to  see  the  General  Superintendent  immediately ;  he  saw  Gen.  Tall- 
madge,  who  was  in  the  room  at  the  time,  and  was  told  by  him  that  he 
had  sent  down  no  men  because  of  no  requisition  having  been  served  upon 
him ;  witness  told  him  he  would  make  a  requisition  on  him  immediately 
for  sixty  men  to  be  sent  down  to  the  Quarantine ;  the  General  Superinten- 
dent said  he  would  send  them  as  soon  as  they  could  be  got  together,  which 
would  occupy  some  little  time.  Mr.  Schell,  the  Collector,  then  came  up 
and  said  he  had  sent  down  a  body  of  marines ;  witness  thanked  him,  and 
said,  that  relieved  his  mind  very  much.    Mr.  Tallmadge  was  with  Mr. 


20 


Schell  at  that  time  ;  and  witness  told  him  there  was  no  use  in  sending  those 
men  down,  as  Mr.  Schell  had  sent  the  marines  down." 

Mayor  Tiemann.  That  is  not  reported  correctly.  Mr.  Tallmadge  was 
not  wTith  Mr.  Schell,  when  he  came  up. 

General  Nye.  The  fact,  I  presume  was,  that  he  told  the  Mayor,  and 
the  Mayor  communicated  to  the  General  Superintendent,  that  the  marines 
were  sent  down  there  to  protect  the  State  property  as  well  as  the  U.  S. 
Government  Property. 

Mr.  Noyes.  There  was  then  abundant  time  to  get  the  men  down,  and 
the  marines  did  not  go  down  till  after  that.  Now,  this  countermanding  of 
the  order  was  caused  by  this  assurance  of  the  Collector,  that  he  had  pro- 
cured and  sent  down  a  guard  of  marines  for  the  protection  of  all  the  prop- 
erty at  Quarantine,  including  State  as  well  as  United  States  Government 
Property.  Now,  I  will  examine  that  subject.  The  question  is  whether 
the  General  Superintendent,  whether  Gen.  Nye,  whether  the  members  of 
this  Board,  as  a  Board  or  individually,  were  justified  in  relying  upon  that 
statement.  That  is  the  question.  It  involves  another,  whether  blame  is 
imputable  to  them  or  to  the  General  Superintendent,  for  relying  on  that 
statement :  and  that  involves  the  question  of  the  rights  and  duties  of  the 
Collector  in  reference  to  the  Quarantine  property,  and  the  Health  Laws  of 
the  State.  Now,  in  relation  to  what  occurred  there  with  the  Collector,  I 
think  I  shall  be  excusable  if,  preliminarily,  I  endeavor  to  show  to  this 
Board,  what  provision*has  been  made  by  our  laws  for  the  protection  of 
State  property  under  such  circumstances.  I  am  sorry  to  detain  the  Board 
so  long,  but  I  hope  they  will  be  patient  with  me.  I  certainly  shall  get 
along  as  fast  as  I  can.  Now,  in  the  first  place,  the  militia  of  Staten  Island — 
a  pretty  hard  militia,  I  should  think,  from  the  conduct  exhibited  during 
the  riots — composes  a  separate  battalion  attached  to  the  first  division  of 
the  militia  of  the  State  of  New  York  ;  I  suppose  those  are  General  Sand- 
ford's  troops. 

Gen.  Nye.    In  time  of  peace. 

Mr.  Noyes.  Yes,  in  time  of  peace  ;  and  in  times  of  insurrection  and 
riot,  the  commandant  of  the  battalion  is  required  by  law  to  assemble  his 
men  under  arms,  and  dispatch  the  news  to  the  General  with  the  utmost  pos- 
sible speed  (1  R.  S.  4th  ed.  611,  §§  37,  38,  39).  That  is  one  of  the  recognized 
means  for  the  protection  of  individual  and  State  property  in  cases  of  riot. 
And  besides  that,  the  Sheriff  of  the  county,  under  the  common  law,  and 
by  virtue  of  his  office,  is  charged  with  the  duty  of  protecting  property  and 
suppressing  riots.  At  the  common  law,  sheriffs,  in  England,  were,  for  a 
long  time  elected — I  think  until  the  time  of  the  second  Edward — among 
other  things  to  protect  property.  Hear  what  Lord  Coke  says,  about  it  : — 
"  The  Sheriff  has  triplicem  custodiam,  viz.,  vita?  justitia>,  vita?  legis,  et  vitce 


21 


reipublicte.  Vitce  justitice,  to  serve  process  and  to  return  indifferent  juries 
for  the  trial  of  men's  lives,  liberties,  lands  and  goods  :  Vitce  legis,  to  exe- 
cute process  and  make  execution,  which  is  the  life  of  the  law ;  and  vitce  rei- 
publicce,  to  keep  the  peace."  That  is  the  duty  of  the  Sheriff;  and  if  there 
be  any  rebellion,  insurrection,  or  riot  in  the  county,  the  sheriff  may  take 
the  posse  comitates  for  the  suppression  of  it,  and  every  man  is  bound  to 
aid  him.  Now,  these  were  the  ordinary,  constituted  means  of  keeping  the 
peace  at  Staten  Island,  and  for  suppressing  precisely  such  a  riot  as  this  ; 
and  I  need  not  tell  this  Board  that  all  these  bodies  and  all  these  officers 
were  utterly  derelict  to  their  duty,  and  not  only  derelict  to  their  duty,  but 
probably  connived  at  the  outrage. 

Mayor  Tiemann.  I  am  not  going  to  interrupt  you,  but  have  you  exam- 
ined the  laws  of  Congress  ? 

Mr.  Noyes.  I  was  about  to  advert  to  that.  I  say  then,  primarily,  that, 
for  the  purposes  of  custody  and  preservation,  Mr.  Schell,  after  he  assumed 
this  responsibility,  was  the  custodian  of  all  the  buildings  at  Quarantine. 
He  was  so,  because  there  were  government  buildings  contiguous,  one  of 
which,  at  least,  had  been  used  for  precisely  the  same  purpose  as  the  State 
buildings — the  reception  of  yellow-fever  patients,  or  property  which  had 
been  in  immediate  contact  with  yellow-fever  patients ;  which  building  was 
itself  offensive  to  the  rioters,  and  one  which  they  were  kept  from  destroying 
only  because,  according  to  the  testimony  of  Mr.  Locke,  he  had  shut  it  up, 
and  had  given  notice  that  it  should  no  longer  be  used  for  such  a  purpose. 
These  buildings  were-in  such  immediate  proximity  that  even  Captain  Rich 
had  determined  that  if  the  firing  of  the  State  buildings  endangered  the 
safety  of  the  government  buildings,  he  should  protect  the  State  buildings 
as  necessary  to  the  preservation  of  the  government  buildings. 

Now,  the  act  of  Congress,  of  1799,  to  which  the  Mayor  has  called  my 
attention,  absolutely  imposed  this  duty  upon  the  Collector,  and  upon  every 
naval  and  military  officer  on  the  station  ;  not  because  he  is  requested  to  do 
it,  but  by  virtue  of  his  office,  he  is  bound  to  do  it.  He  is  bound  to  volun- 
teer to  protect  the  State  as  well  as  the  Government  property.  Now,  let  me 
read  the  sections  of  the  act  passed  on  the  27th  of  February,  1799.  (See  1 
Story's  Laws  U.  S.  564.) 

§  1.  Be  it  enacted,  &c.  That  the  Quarantines  and  other  restraints  which 
shall  be  required  and  established  by  the  health  laws  of  any  State  or  pursu- 
ant thereto  respecting  any  vessels  arriving  in  or  bound  to  any  port  or  dis- 
trict thereof,  whether  from  a  foreign  port  or  place,  or  from  another  district 
of  the  United  States,  shall  be  duly  observed  by  the  collectors  and  all  other 
officers  of  the  revenue  of  the  United  States  appointed  and  employed  for 
the  several  collection  districts  of  such  State  respectively,  and  by  the  masters 
and  crews  of  the  several  revenue  cutters,  and  by  the  military  officers  who 


22 


shall  command  in  any  fori  or  station  upon  the  sea  coast  :  And  all  such 
officers  of  the  United  States  shall  be  and  they  are  hereby  authorized  and 
required  faithfully  to  aid  in  the  execution  of  such  quarantines  and 
health  laws,  according  to  their  respective  powers  and  precincts,  and  as 
they  shall  be  directed  from  time  to  time  by  the  Secretary  of  the  Treasury 
of  the  United  States. 

Well,  then,  the  Health  and  Quarantine  Laws  must  be  observed  by  the 
collectors,  and  carried  out  and  enforced  by  the  masters  and  crews  of  the 
several  revenue  cutters,  and  by  the  military  officers  who  shall  command  in 
any  fort  or  station  on  the  sea  coast.  That  is  a  declaration  of  their  general 
duty ;  and  then  we  have  this  :  "  And  all  such  officers  of  the  United  States 
shall  be,  and  they  are  hereby  authorized  and  required — demanded — faith- 
fully to  aid  in  the  execution  of  such  Quarantine  and  Health  laws,"  according 
to  their  respective  powers  and  precincts.  They  are  required  to  aid  in  the 
execution  of  the  Quarantine  laws ,  and,  of  course,  they  are  required  to  fur- 
nish that  aid  when  those  Quarantine  laws  are  broken  down,  and  when  the 
buildings  for  the  uses  of  the  Quarantine  are  endangered.  They  are  not  only 
bound  to  do  this  faithfully,  but  to  do  it  without  requirement.  The  statute 
proceeds :  "  And  as  they  shall  be  directed  from  time  to  time  by  the  Secre- 
tary of  the  Treasury  of  the  United  States."  They  are  not  only  required 
to  do  this  as  a  part  of  their  official  duty,  without  request,  but  they  are  re- 
quired in  addition  to  obey  the  Secretary  of  the  Treasury  in  relation  to 
all  the  matters  connected  with  this  subject  which  are  not  otherwise  called 
to  their  attention. 

General  Nye. — The  law,  likewise,  I  believe,  provides  that  the  marines 
form  a  part,  under  given  circumstances,  of  both  the  army  and  the  navy. 

Mr.  Noyes. — I  have  a  reference  to  that  on  my  brief.  The  marine  corps 
is  a  part  of  the  military  establishment  of  the  United  States.  That  will  be 
found  in  the  act  passed  on  the  1 1th  July,  1 798  (1  Story's  Laws  U.  p.  542, 
§§1,2,  4) ;  so  that  the  collector,  as  well  as  this  corps  of  marines,  and  every 
man  on  board  of  a  national  ship  in  the  harbor,  was  bound  by  his  duty  as 
an  officer,  to  interfere  and  protect  State  property,  whether  he  was  formally 
requested  to  do  so  or  not.  But,  however  that  may  be,  the  Collector  assumed 
that  he  had  the  right  so  to  interfere  ;  he  stated  that  he  had  exercised  that 
right,  and  that  he  had  sent  men  down  to  protect  the  State  property.  And 
what  is  the  result  ?  The  men,  being  on  the  ground,  failed  in  their  duty. 
That  is  the  whole  of  it.  They  failed  in  their  duty  as  United  States  officers 
and  soldiers.  They  failed  in  their  duty  as  citizens.  Captain  Rich  says  that 
his  orders  did  not  include  the  protection  of  this  property.  I  say,  they  did 
not  exclude  it.    His  orders  did  include  Government  property.    I  would 


23 


have  construed  those  orders  in  a  liberal  sense.  1  would  have  understood 
the  term,  Government  property,  as  reflating  to  any  Government  property, 
state  or  national ;  and  so  he  ought  to  have  construed  it.  Moreover,  he 
ought  so  to  have  regarded  them,  even  against  orders ;  and  I  say  that,  even  if 
he  had  received  an  order  from  the  Commandant  of  the  United  States  Navy 
Yard,  saying  to  him  that  he  should  not  do  it,  it  was  his  duty  as  an  officer, 
as  a  citizen,  and  as  a  man  with  a  human  heart,  to  violate  his  orders.  A  pro- 
found writer  on  this  subject  has  said :  "  There  is  no  Government  ever  so 
absolute  in  theory  which  has  not  sanctioned  acts  of  disobedience  even  to 
the  command  of  the  prince,  because  done  on  account  of  the  still  more  im- 
portant interests  of  the  same  prince."  What  interest  could  better  justify  a 
disobedience,  what  interest  could  have  been  of  more  importance,  than  the 
protection  of  these  poor  people  on  that  dreadful  night  ?  He  proceeds  : — 
"  How  often  have  monarchs  wished  that  their  orders  had  been  disobeyed  ! 
Napoleon  was,  according  to  Bourienne,  on  some  occasions,  highly  pleased 
when  he  learned  he  had  been  disobeyed.  In  short,  obedience  is  always 
acknowledged  in  practice  as  something  relative ;  and  of  this,  of  course,  the 
individual  must  judge."  (Lieber's  Political  Ethics,  Vol.  2,  p.  21 6.)  And 
when  Captain  Rich  saw  this  outrage  going  on,  he  was  bound  to  judge  that 
he,  as  a  man  and  as  an  officer,  representing  this  great  republic,  should 
not  permit  such  atrocities  to  be  committed,  if  he  could  prevent  them  ;  es- 
pecially when  having  his  fifty  muskets  in  the  hands  of  trained  men,  he  could 
have  driven  those  guilty  wretches  from  their  infernal  work,  or  driven  them 
where  they  deserved  to  go — into  eternity. 

Mayor  Tiemann.    A  hundred  muskets. 

Gen.  Nye.    Fifty-seven,  it  turns  out  to  be. 

Mr.  Noyes.  He  had  fifty  men  armed,  and  five  musicians.  Now,  I  say, 
it  was  his  duty,  because,  as  a  citizen,  he  "was  bound  to  interfere — as  every 
citizen  is.  I  refer  to  Wharton,  on  Criminal  Law  4th  Ed.,  Section  2499.  1 
will  read  the  whole  paragraph. 

"  An  unlawful  assembly  may  be  dispersed  by  a  Magistrate  whenever  he 
finds  a  state  of  things  existing,  calling  for  an  interference  in  order  to  the 
preservation  of  the  public  peace.  He  is  not  required  to  postpone  his  action 
until  the  unlawful  assembly  ripens  into  an  actual  riot.  For  it  is  better  to 
anticipate  more  dangerous  results,  by  energetic  intervention  at  the  inception 
of  a  threatened  breach  of  the  peace,  than  by  delay  to  permit  the  tumult  to 
acquire  such  strength  as  to  demand  for  its  suppression  those  urgent  meas- 
ures which  should  be  reserved  for  great  extremities.  The  magistrate  has 
not  only  the  power  to  arrest  the  offenders,  and  bind  them  to  their  good  be- 
havior, or  imprison  them  if  they  do  not  offer  adequate  bail,  but  he  may 
authorize  others  to  arrest  them  by  a  bare  verbal  command,  without  any 
other  warrant ;  and  all  citizens  present  whom  he  may  invoke  to  his  aid, 
are  bound  promptly  to  respond  to  his  requisition,  and  support  him  in  main- 
taining the  peace.    A  justice  of  the  peace,  either  present,  or  called  on  such 

3 


24: 


an  occasion,  who  neglects  or  refuses  to  do  his  utmost  for  the  suppression  o. 
such  unlawful  assemblies,  subjects  himself  to  indictment  and  conviction  for 
a  criminal  misdemeanor.  Where,  however,  as  was  laid  down  in  the  Lord 
George  Gordon  riots  by  Lord  Loughborough,  and  as  has  been  held  in  this 
country  in  cases  of  late  occurrence,  an  unlawful  assembly  assumes  a  more 
dangerous  form,  and  becomes  an  actual  riot,  particularly  when  life  or  prop- 
erty is  threatened  by  the  insurgents,  measures  more  decisive  should  be 
adopted.  Citizens  may,  of  their  own  authority,  lawfully  endeavor  to  sup- 
press the  riot,  and  for  that  purpose  may  even  arm  themselves  ;  and  what- 
ever is  honestly  done  by  them  in  the  execution  of  that  object,  will  be  sup- 
ported and  justified  by  the  common  law.  It  is  the  duty  of  every  citizen  to 
make  such  endeavor,  and  when  the  rioters  are  engaged  in  treasonable  prac- 
tices, the  law  protects  other  persons  in  repelling  them  by  force." 

It  is  a  species  of  treason,  to  endeavor  to  overthrow  the  establishments 
erected  under  the  laws  of  the  land,  for  the  protection  of  the  public  health, 
and  the  safety  of  our  citizens. 

These  people  were  engaged  in  the  commission  of  one  of  the  great- 
est of  crimes,  arson — a  capital  offence.  Burning  inhabited  dwellings 
in  the  night  time,  and  thrusting  their  defenceless  inhabitants  into  the  street ; 
and  this,  irrespective  of  the  sick  in  the  hospitals.  They  were  destroying  a 
humane  establishment  for  the  protection  of  the  sick  alien  and  stranger 
seeking  a  new  home  on  our  shores — confiding  in  the  humanity  of  our  peo- 
ple, and  the  protection  of  our  laws.  I  would  to  God  we  had  an  American 
party  organized  to  put  down  all  who  were  engaged  in  these  nefarious  pro- 
ceedings. And  yet  the  United  States  officers  thought  it  was  not  their  duty 
to  interfere.  They  thought  they  should  keep  within  the  strict  limit  of  their 
written  orders,  and  disregard  the  higher  authority  of  the  Congress  of  the 
United  States,  declared  by  a  law  more  than  half  a  century  old,  requiring 
them  to  do  it  as  they  valued  their  places  and  their  reputations.  The 
most  savage  barbarians  are  kind  to  the  unfortunate  strangers  who  come 
among  them.  The  savages  of  Madagascar  permitted  an  unprotected 
woman  to  go  among  them,  like  one  of  themselves,  entirely  unharmed. 
And  yet,  these  civilized  people,  living  in  what  is  called  "the  Isle  of 
Wight"  of  America — a  crowd  of  these  civilized  people — more  than  one 
thousand  persons,  men,  women  and  children,  and  among  them  two  clergy- 
men, ministers  of  Him  whose  mission  was  love,  and  peace,  and  good-will  to 
men,  stand  approvingly  by  and  triumph  over  this  deed  of  midnight  atroc- 
ity !  If  the  wretch  who  fired  the  Ephesian  Dome  won  fame  and  infamy  at 
the  same  instant,  what  a  weight  of  infamy  must  rest  upon  those  who  had 
no  pity  on  the  sick  and  the  dying  stranger  on  that  dreadful  night.  Even 
Brennusand  his  hordes  of  Vandals  at  the  sacking  of  Rome,  committed  no 
greater  barbarities.  And  the  whole  was  unlawful  as  well  as  inhuman;  the 
whole  of  it.  The  plea  of  lawfulness  has  been  set  up  by  these  people  and  by 
those  who  justify  tii cm.    It  would  be  available  to  the  accused  in  this  place 


25 


if  it  were  sound  ;  but,  as  a  man  and  as  a  lawyer,  I  repel  that  defence  with 
scorn  and  contempt.  There  is  no  foundation  for  ft.  The  ground  taken  upon 
that  subject  is  subversive  of  all  law.  It  is  not  only  shameless,  but  revolu- 
tionary, and  destroyes  all  security  for  our  persons  and  our  property.  There 
is  no  such  thing  as  a  legislative  power  in  the  State,  if  these  acts  can  be  jus- 
tified as  having  been  done  under  the  color  of  law.  There  is  a  plain  princi- 
ple at  the  bottom  of  it  all  which  controls  it,  and  that  is,  that  that  cannot  be 
unlawful  which  the  supreme  legislative  power,  for  the  purpose  of  protect- 
ing the  public  health,  declares  shall  be  lawful.  If  it  comes  in  conflict 
with  a  constitutional  provision,  then  of  course  it  must  give  way,  and  I  speak 
with  that  exception  ;  but  to  say,  that  what  the  Legislature  within  constitu- 
tional limits,  has  authorized  for  the  wisest  and  most  benevolent  of  purposes, 
can  be  unlawful,  is  absurd  and  wicked  ;  to  say,  that  while  the  Legislature 
has  the  power  to  originate  and  continue  a  quarantine  establishment  for 
the  protection  of  the  public  health,  it  may  be  lawfully  demolished,  is 
an  outrage  upon  all  law.  No  work  which  is  erected  and  maintained  by 
the  State  in  pursuance  of  law,  for  public  uses,  can  be  a  nuisance,  so  as  to 
authorize  its  destruction.  It  must  remain  until  the  sovereign  legislative 
power  declares — and  it  alone  has  the  power  to  declare — that  it  shall  no  long- 
er exist.  This  is  the  doctrine  of  the  Supreme  Court  in  the  case  of  Harris 
v.  Tho?n2)son,  in  9th  Barbour,  350,  and  the  doctrine  of  the  Superior  Court 
of  New  York ;  an  extract  from  which  I  will  read.  Judge  Duer,  con- 
sidering the  right  of  the  Legislature  to  establish  a  depot  at  Castle 
Garden  for  the  reception  of  emigrants,  with  the  aid  of  the  luminous 
mind  of  Chief  Justice  Oakley,  and  the  distinguishing  sense  of  Judge 
Campbell,  speaking  for  the  whole  Court,  said  : — "  Let  it,  however,  be  ad- 
mitted, as  a  general  rale,  that  the  Legislature  has  no  right  to  create,  or  au- 
thorize the  creation  of  a  nuisance ;  it  seems  not  possible  to  deny  that  there 
are  special  cases  that  must  be  considered  as  exceptions  from  the  rule.  It 
cannot  be  denied  that  cases  may  arise  in  which  a  just  and  enlightened  re- 
gard to  the  interests  of  the  public  at  large,  and  even  of  the  inhabitants  of  a 
single  city,  may  justify  the  erection  of  that,  which  in  its  consequences,  may 
prove  a  nuisance  to  those  who  reside  in  the  neighborhood  in  which  it  is  es- 
tablished. A  power  which  is  possessed,  and  has  frequently  been  exercised 
by  a  municipal  corporation,  cannot  reasonably  be  denied  to  the  Legislature. 
This  was  well  illustrated  in  the  instance  put  by  Mr.  O'Conor : — During  the 
prevalence  of  the  cholera,  or  other  contagious  disease,  the  corporation  of 
the  city  has  been  accustomed  to  establish  hospitals  for  the  reception  of  the 
diseased,  in  different  parts  of  the  city  ;  and  the  proximity  and  even  neces- 
sity of  such  an  exercise  of  its  powers  has  never  been  called  in  question. 
Every  such  hospital,  however,  is  more  or  less  of  a  nuisance  to  those  who 
reside  in  the  vicinity ;  but,  as  the  general  interests  of  the  community,  and 


26 


the  pleasing  dictates  of  humanity,  require  them  to  be  established,  the  incon- 
venience, discomfort,  and  dangers  resulting  to  a  particular  class  of  persons 
are  overlooked  and  disregarded.  The  maxim  applies — salus  populi  supre- 
ma  lex."    (12  How.  Pr.  R.  15). 

And  Ch.  J.  Denio,  in  the  Broadway  railroad  case  (Davis  v.  Mayor  & 
Cor.  of  N.  Y.,  14  JV.  Y  Hep.,  p.  515)  in  his  accustomed  terse  and  forcible 
manner,  said  : — "  If  the  transaction  between  the  Corporation  on  the  one 
part  and  Sharp  and  his  associates  on  the  other,  by  whatever  name  it  may 
be  called,  was  a  legal  act,  conferring  upon  the  latter  the  right  and  privilege 
which  it  proposed  to  give  them,  then  it  is  impossible  that  the  railway  should 
have  been  a  public  nuisance  ;  that  being  an  offence  which  cannot  be  predicated 
of  the  lawful  exercise  of  authority  upon  a  subject  to  ivhich  it  is  applicable." 

It  is  clear,  therefore,  that  the  demolition  of  the  Quarantine  buildings  was 
not  only  without  law,  but  against  law. 

Now,  then,  I  have  shown  that  the  Collector  was,  primarily,  bound  to 
protect  these  buildings,  and  that  he  assumed  to  do  so.  I  have  established 
the  fact  that  the  force  he  sent  down  was  bound  to  do  so,  as  a  matter  of 
official  duty  ;  and  I  have  proved  that  they  were  bound  to  do  it  as  men  and 
as  citizens.  Upon  whom,  then,  does  the  responsibility  for  permitting  the 
burning  of  these  additional  buildings  rest?  It  rests  upon  the  officers  of  the 
General  Government ;  it  rests  upon  the  General  Government  itself,  because 
their  officer,  charged  with  and  assuming  this  duty,  misled  the  city  author- 
ities— the  Mayor,  the  Board  of  Police,  and  the  General  Superintendent — 
and  misled  them,  too,  under  circumstances  of  the  most  extraordinary 
character.  I  cannot,  for  my  life,  account  for  the  strange  statement  made 
by  Mr.  Schell  to  the  Mayor,  that  he  had  sent  down  a  force  to  protect  the 
State  property,  when  we  have  his  own  order  here  showing  what  he  had 
really  done. 

Mayor  Tiemann.  lie  did  not  so  state  to  me  that  evening  in  the  Hotel, 
Mr.  Noyes.  No,  the  Mayor  knew  nothing  about  his  orders.  That  is 
the  strange  part  of  it.  He  subsequently  told  the  Mayor,  distinctly,  that  he 
told  him  at  the  Metropolitan  Hotel  that  he  had  sent  down  a  body  of  ma- 
rines to  protect  the  State  property  as  well  as  the  Government  property, 
and  meant  that  he  should  so  understand  it.  And  yet,  here  is  his  order;  an 
order  which  we  never  saw,  never  heard  of,  until  it  was  produced  yesterday 
by  Surveyor  Halt.  I  never  saw  it,  and  1  don't  know  that  this  Board  or 
an\  member  of  it  ever  did. 
Gen.  Nye.    I  never  did. 

Mr.  Nb&t*  It  is  dated  the  2d  of  September,  and  addressed  to  Com. 
Kearney  : 

(  Ystom  1 1 -i    i  .  N'kw  York, 
Collectors  Office,  September  2d,  1858. 
Sir — You  will  please  to  send  a  detachment  of  one  hundred  marines 
immediately,  to  the  Upper  Quarantine  Station,  Staten  Island,  for  the  pur- 


27 


pose  of  protecting  the  warehouses  and  other  buildings  belonging  to  the 
United  States,  located  at  that  place,  to  remain  there  until  further  orders. 

I  am  very  respectfully  your  obd't  serv't, 

AUGUSTUS  SCHELL,  Collector. 
Com.  L.  Kearney,  ConuVg  U.  S.  Navy  Yard. 

Yet,  on  the  evening  of  that  very  day,  probably  within  three  or  four 
horn's  after  it  was  written,  and  while  the  ink  was  yet  fresh,  he  tells  the 
.Mayor  he  had  sent  a  force  down  there  to  protect  everything. 

Mayor  Tiemann.  He  did  not  tell  me  that  evening  in  so  many  words 
that  he  had. 

Mr.  Noyes.    But  that  was  your  inference  from  what  was  said. 
Mayor  Tiemann.    Yes,  sir. 

Mr.  Noyes.    He  led  you  to  believe  that,  and  next  day  he  said  to  you 
that  was  his  intention  ;  therefore  your  inference  was  entirely  correct. 
Mayor  Tiemann.    That  is  right. 

Mr.  Noyes.  And  yet  it  is  certain  that  if  he  had  stated  the  true  pur- 
port of  his  order,  the  Mayor  would  not  have  rested  content,  but  would 
have  caused  a  police  force  to  be  sent  down. 

Mayor  Tiemann.    The  force  would  certainly  have  been  sent. 

Mr.  Noyes.  And  further',  all  this  corroborates  what  I  have  stated,  that 
we  cannot  rely  with  any  sort  of  confidence  upon  oral  declarations ;  and  it 
shows,  moreover,  the  importance  of  having  all  the  orders  and  all  the  com- 
munications which  pass  between  different  bodies  of  men,  charged  with 
high  public  duties,  in  ^writing,  so  that  there  shall  be  no  mistake  about  them. 
But  however  this  may  be,  it  is  undeniable  that  the  responsibility  of  all  the 
incendiarism,  on  the  night  of  the  2d  of  September,  rests  upon  the  Col- 
lector and  upon  the  marines,  and  not  upon  the  city  government.  My 
proposition  is  established,  my  case  is  secure,  when  I  show  that  it  does  not 
rest  upon  the  General  Superintendent.  I  do  not  see  how  the  General  Gov- 
ernment can  escape  responsibility  —  pecuniary  responsibility  —  for  this. 
The  duty  was  cast  upon  them.  They  assumed  it.  They  misled  the  officers 
of  the  City  Government,  including  the  Commissioners  of  Police  and  the 
General  Superintendent,  and  the  consequence  was  that  no  force  was  on  the 
ground.  And  more  than  that :  we  find  their  officers  in  very  familiar  com- 
munication with  one  who  is  supposed  to  have  been  at  the  head  of  the 
rioters.  We  find  one  of  these  officers  in  communication,  then  and  after- 
wards, with  a  man  who,  by  his  mere  word,  kept  the  crowd  back  from  the 
Women's  Hospital,  when  they  came  to  apply  the  torch  to  it.  They  obeyed 
him  more  implicitly  than  the  marines  obeyed  their  commander.  The 
moment  he  announced  that  they  might  enter  it,  to  ascertain  whether  there 
were  any  sick  there,  this  crowd,  which  had  been  before  obedient  to  his 
command,  fired  the  building,  and  the  flames  rushed  from  every  part  of  it 


28 


almost  simultaneously.  And  more  than  that :  we  find  the  boarding  officer 
not  only  sympathizing  with  the  outrage  and  those  who  committed  it,  but 
approving  of  it  here,  and  attempting  to  force  upon  this  Board  the  convic- 
tion that  it  was  lawful.  And  all  this  in  connection  with  this  great  fact  that 
the  Surveyor  of  the  Port,  this  Boarding  Officer,  and  the  Private  Secretary 
of  the  Collector,  were  on  the  ground  stationing  these  marines,  and  placing 
them  where  they  would  not  protect  the  State  property ;  and,  and  when 
the  ffames  were  bursting  from  the  burning  buildings,  and  this  Surveyor,  in 
the  boat  returning  towards  New  York,  was  within  a  stone's  throw  of  the 
shore,  he  coolly  directs  her  to  be  turned  so  that  he  could  ascertain  exactly 
where  the  fire  was,  and  then  proceeds  to  the  city,  leaving  them  to  perish. 
Other  officers  of  the  Government  were,  at  the  same  time  looking  on  with 
seeming  approbation.  If  the  Government  is  not  responsible  under  such 
circumstances,  when  the  duty  of  protection  is  cast  upon  its  officers  by  the 
act  of  Congress,  then  there  is  no  public  responsibility  in  cases  of  this 
description. 

I  have  not  designed  to  say  any  thing  here  which  would  needlessly 
reflect  upon  any  individual.  I  am  always  anxious  to  avoid  anything  of 
that  character  in  a  forensic  discussion.  But  my  duty — my  duty,  not  only 
as  a  lawyer,  but  as  a  man — required  that  I  should  state  frankly  the  views 
which  I  entertain  of  all  these  circumstances,  and  I  have  endeavored  to  do 
so,  not  only  for  the  purpose  of  placing  this  defendant  right  in  the  matter 
of  this  accusation,  but  for  the  purpose,  as  far  as  lay  within  my  power,  of 
setting  the  public  right  about  it. 

The  rules  of  this  Board  require  that  decisions  in  these  cases  shall  be 
pronounced  on  the  day  succeeding  the  trial ;  in  this  case,  therefore,  a  decision 
should  be  rendered  to-morrow.  There  are  some  associations  connected 
with  that  day  which  I  deem  it  proper  to  call  to  the  attention  of  the  Board, 
as  I  am  about  to  close  this  discussion.  If  I  am  right  in  the  view  which  I 
have  taken,  there  is  no  good  ground  of  accusation  against  Mr.  Tallmadge. 
I  have  alluded  somewhat  to  his  antecedents.  I  had  a  right  to  do  so.  His 
antecedents  compose  his  character,  and  excellent  public  character  is  a  thing 
which  cannot  be  overvalued.  If  it  be  connected — as  it  is  in  him  with  dis- 
tinguished ancestry — the  source  of  high  aspirations  and  the  stimulus  to 
noble  deeds — it  may  be  relied  on  as  a  defence  and  protection  on  occasions 
like  these. 

Seventy-eiejit  years  ago,  to-morrow,  a  gallant  Adjutant  General  of  the 
British  Army  was  executed  at  Tappan  as  a  spy.  He  was  discovered  and 
his  true  character  disclosed — after  Col.  Jamieson,  to  whom  he  was  first 
delivered  after  his  arrest — had  sent  him  to  Arnold  as  John  Anderson, 
without  any  suspicion  of  his  real  character — by  the  vigilance  and  wisdom 
of  the  father  of  the  General  Superintendent, — then  a  Major  in  the  Revo- 


29 


lutionary  Army.  But  for  this  timely  discovery  Andre  would  have  escaped, 
and  the  foulest  treason  upon  record  would  probably  have  been  consum- 
mated, and  the  independence  of  our  country  jeoparded,  if  not  lost.  A 
few  days  passed,  he  was  executed,  and  our  liberties  were  secured.  It  will 
be  proper  on  the  anniversary  of  that  day, — a  day  which  showed  our  deter- 
mination to  be  a  power  upon  the  earth  ;  because  it  was  not  believed  that 
General  Washington  dared  to  execute  him, — it  will  T  repeat,  be  emi- 
nently fit  and  proper,  on  the  anniversary  of  that  day,  to  restore  the  Gen- 
eral Superintendent  to  his  office  and  to  his  public  character;  intaminatis 
fidget  honor ib us. 


f  I 

UM0B 


